Thomas Peele: Obama no friend of a free press

His recent comments in support of the Justice's Department's unconstitutional, broad use of subpoenas for phone records of Associated Press reporters is yet another example.

He's done nothing to improve access to government records under the Freedom of Information Act and has established a poor FOIA-compliance record.

Despite signing an executive order calling for liberal interpretations of access -- in other words, findings ways to say yes, not no -- his government says no at record levels, studies have shown.

And Obama continues attempts to restrict news gathering.

As galling as the subpoena for the AP phone records is, Obama's done worse. When it comes to being obsessive about leaks, the president seems to spend inordinate time channeling his inner Richard Nixon.

Except for this. Dick Nixon was no Barack Obama. Nixon did little real harm to the First Amendment. (One could even say he inadvertently strengthened it, given the journalistic legacy of Watergate.)

The Obama administration has charged five people with leaking -- more than the governments of all other presidents combined. He's has sent a clear message to all those in the federal government -- source journalists with information and you will be silenced and even jailed.

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One of those cases may soon end up before the U.S. Supreme Court, with a potential devastating outcome for American journalism and freedom.

It involves Pulitzer-Prize winning investigative reporter James Risen of The New York Times. The Obama administration wants to force him to testify who leaked him information about a failed CIA effort in 2002 to derail Iran's nuclear program that was reported in his 2006 book, "State of War, The secret History of the CIA and the Bush administration."

A former CIA agent, Jeffrey Sterling is accused of giving Risen information.

At issue is whether a journalist can be compelled to identify a source. Most states, like California, have a shield law, allowing journalists to assure nearly absolute protections to sources. The federal government does not, and efforts to create one have fallen flat for years.

But journalists and our supporters insist that source protection is inherent in the First Amendment.

The Risen case has dragged on since the Bush administration. After a federal district judge in Virginia ruled that he did not have to testify about his source. But the Justice Department appealed.

Arguments before a three-judge panel in the Fourth District Court of Appeals took place a year ago this month.

As of last week, no decision had been issued. Risen has been adamant he will not testify about his source. He knows that his credibility, and by the extension the credibility of journalism, is at stake.

No matter who wins, the case is likely to be appealed the Supreme Court, setting up a possible definitive ruling.

A recent decision in another case out of Virginia showed a little of what justices may think of press freedoms, and it's frightening.

They agreed, unanimously, that states can limit use of public records laws to state residents only. During arguments, Justice Antonin Scalia said, Virginia "didn't want outlanders mucking around in (its) government. Why isn't that reasonable?"

Mucking around in government -- any government -- regardless of state borders, is one of the nation's founding principles. Considering Scalia's oft-stated opinion that the Constitution should be interpreted only in its original meanings, it is especially difficult to understand his comment.

Certainly he knows that Jefferson, Madison, and the rest of the founders created a free press to hold government accountable.

But given his remark, it seems doubtful that Scalia would find journalists have a First Amendment right not to reveal sources. Yet it is his Supreme Court to which Obama seems intent in steering the question.

What does the president think? He says he favors a federal shield law, but one that exempts national security matters. Of course, all his leak investigations involve national security.

But America can't have it both ways. Journalists need sources in order to hold the national security apparatus accountable. But no one is going to talk if their protections can't be assured.

The phone subpoena story is important.

A wrong, Obama-driven Supreme Court decision in the Risen case would be an American disaster.